Hetherington v. Br. Bank at Mobile

DARGAN, J. It is not necessary to determine, whether a security on a forthcoming bond will be discharged if the creditor, after a levy is made on personal property of value sufficient to satisfy the debt, orders the property to be restored to the possession of the principal debtor, without the consent of the security. But the simple question is, if the execution is issued, but not levied, may not the creditor grant indulgence to the principal debtor. The creditor not being bound by any contract to suspend proceedings for any definite time, but having the entire right to proceed at any moment to make the money ? This question arose in the case of McKinney v. Waller, 1 Leigh’s Rep. 434, under circumstances very similar to the facts disclosed in this case. In that case an execution was issued, the sheriff was about to levy on the property of the principal, but he prevailed on the creditor to give him indulgence. The creditor gave the sheriff written instructions not to levy until he, the creditor should see him. The sheriff returned — not executed, by order of the plaintiff. The principal debtor removed his property afterwards, beyond the jurisdiction of the court, and the question was, did the instructions so given by the creditor relieve the security, and it was determined that the security was not discharged. To the same effect is the case of Alcock v. Hill, 4 Leigh’s Rep. 622. In the case of Sawyer v. Bradford, 6 Ala. Rep. 572, this court held, that mere instructions by the plaintiff to the sheriff, to stay proceedings on an execution against the principal debtor, did not release the security, and also, in 11 Ala. R. 524, it is said, that mere gratuitous indulgence given by the [73] plaintiff to the principal after the recovery of a judgment against him, will not discharge a security. Nor do we see any reason why mere indulgence to the principal debtor, after judgment and execution, should discharge a security, when it is admitted as settled law, that indulgence merely, before judgment will not discharge a security. But before a security can claim exemption from his contract and liability, he must show that the day of payment has been postponed without his consent, by a contract valid in law, and binding on the parties. See 2 Paige’s R. 497; 3 Stew. 63; 2 Johns. Ch. R. 357; 4 Harris & McK. 41. In this case the executions were issued, but not levied; and the order was, to suspend the execution until further orders. This order was not given in consequence of any new consideration, nor did it deprive the plaintiff of the immediate right to coerce the payment of the money at any moment afterwards. Such an order we do not think discharges the security, and the decree of the chancellor is consequently affirmed.